GHG Monitor Vol. 1 No. 1
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Article 4 of 5
January 06, 2017

NSPS Case Briefing Extension No-Go, Court Says

By Abby Harvey

Donald Trump’s impending presidency will not delay the court-ordered schedule for a federal lawsuit against the Environmental Protection Agency’s carbon emissions standards for new-build coal-fired power plants, the U.S. Court of Appeals for the D.C. Circuit ordered Wednesday.

The current schedule gives petitioners until Jan. 19 to respond to the EPA and its intervenors’ briefs defending the rule, submitted on Dec. 14 and Dec. 21, respectively. Trump, who has pledged to overturn a number of EPA regulations, but has not specifically addressed the agency’s New Source Performance Standards, takes office on Jan. 20.

The petitioners opposing the rule asked that the Jan. 19 deadline be pushed to Feb. 24, which would also presumably delay the due date for both sides’ final briefs, which is currently set for Feb. 6. Under the current court schedule the incoming Trump administration will have just 11 business days post-inauguration to prepare its final brief, which assuredly will look much different than an Obama administration final brief in the case would have. The final briefs are the parties’ last chance to make their case before oral arguments.

Petitioners in the lawsuit argued in a Dec. 16 filing with the court that “the requested extension is necessary to allow the new administration to consider whether it wishes to advise the Court it is reviewing the Final Rule at issue in this case for possible reconsideration, or that the new administration intends to take other action that will significantly affect this litigation.”

The lawsuit, led by North Dakota, challenges the merits of the rule, which essentially mandates the use of partial carbon capture and storage on all new-build coal-fired power plants. The rule requires that individual new-build coal units cap emissions at 1,400 pounds of CO2 per megawatt-hour using partial carbon capture. According to the suit, CCS is not “adequately demonstrated and achievable,” as is required by Clean Air Act.

The EPA opposed the extension request in Dec. 21 court filing, saying “Petitioners’ invocation of the bare inconvenience of filing reply briefs in light of highly speculative assumptions about the possibility of the next presidential administration adopting some new litigation position by February 24 is not ‘extraordinarily compelling.’ Rather, it causes unwarranted delay for which there is no apposite precedent.”

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